Friday, August 12, 2011

Will Third Court of Appeals create a creepiness exception to the Fourth Amendment?

It's been a while since I've paid attention on Grits to the fallout from the Great Eldorado Polygamist Roundup, but now that Warren Jeffs trial is over (and what a lunatic he turned out to be), all that's left is to wait around to determine whether Texas appellate courts will uphold the dubious search warrant underlying the entire exercise. (See Grits coverage of the appellate arguments in May.)

Grits' interest in this case mainly stemmed from two topics: 1) the search warrant amounted to a breathtakingly sweeping, colonial-style writ of assistance of a type unseen in the United States since the overthrow of King George III. 2) Nearly 500 kids were seized from their mothers and sent to CPS, though even under the theory that young brides were being sexually assaulted, the women should have been treated as crime victims and allowed to stay with their children.

I've never had any beef with prosecuting individual pedophiles, which is why (along with a general lack of bandwidth on a one-man blog) Grits did not cover the blow by blow on individual cases from the Great Eldorado Polygamist Roundup after all the kids were sent home. (Anyway, with all cases taking place in Judge Barbara Walther's court, the outcomes were always faits accompli.) As I understand it, seven men including Jeffs have now been convicted of various sex offenses, which is a far cry from the number of perpetrators alleged when all of the kids were seized. But for my part, I'm still eagerly awaiting the Third Court of Appeals' ruling on the search warrant in the case, as are apparently lots of other folks to judge by a story in the San Angelo Standard Times this week, which opens:
Warren Jeffs and seven other convicted members of the polygamous Fundamentalist Church of Jesus Christ of Latter Day Saints challenged search warrants and evidence in court and were flatly rejected, solely by one judge.

But in the weeks and months to come, appellate court judges in Austin will hold the keys to whether the men remain behind bars or get new trials.

State District Judge Barbara Walther signed off on the original search warrants and later upheld them in a court hearing. Then she presided over FLDS members' trials.

One of the biggest arguments now before the Third Court of Appeals in Austin is in the case of Michael Emack over evidence gathered at the Yearning for Zion Ranch near Eldorado in 2008. Emack is one of 12 FLDS men indicted as an outcome of the raid. The evidence stemmed from search warrants that defense attorneys claim relied on faulty information and were carried out too broadly.
An attorney quoted in the article said perhaps the strongest argument against the search warrant is that the "searches were too sweeping and encompassed an entire community of homes rather than targeting a specific place," which has always been Grits' main objection.

The Third Court of Appeals has already ruled on the civil side that the entire community including independent residences could not be considered a single household, just like an apartment complex with a single property owner doesn't eliminate Fourth Amendment rights of individual apartment dwellers. Footnote 10 to the court's mandamus order (pdf) specifically declared that:
The notion that the entire ranch community constitutes a "household" as contemplated by section 262.201 [of the family code] and justifies removing all children from the ranch community if there even is one incident of suspected child sexual abuse is contrary to the evidence. The Department's witnesses acknowledged that the ranch community was divided into separate family groups and separate households. While there was evidence that the living arrangements are more communal than most typical neighborhoods, the evidence was not legally or factually sufficient to support a theory that the entire ranch community is a "household."
If the court applies consistent reasoning to the search warrant on the criminal side, it's hard to see how it stands.

Yesterday, though, I spoke with an attorney knowledgeable about the case who told me he fears this may be an instance where politics and expedience trumps law and common sense. Jeffs the "prophet" was exposed in court to be a depraved and profligate dictator and the grotesque and creepy details of his own exploits with young girls and his now-infamous promotion of child brides among his flock received wide play in the MSM, not just in West Texas but nationally.

The question becomes, will the court decide the ends justify the means? Will they find some odd, narrow excuse to justify this search while trying to pretend it doesnn't create a new exception to the Fourth Amendment to do the same thing elsewhere? The attorney I spoke to feared Jeffs' behavior was so far-out that Third Court Justices won't want to be seen as ruling in his favor and will find some excuse to carve out a narrow exception (for sex offenders? for religious pariahs?) to allow in all the evidence, even if it contradicts the same court's prior ruling in the child custody cases. That would be a disappointment. Exceptional cases too often make bad law, and it'd be unfortunate if this once in a lifetime case were allowed to expand the "particularity" requirement in the Fourth Amendment so dramatically in one fell swoop.

I don't defend Warren Jeffs behavior for a moment, nor anyone else who uses their religious station to perpetrate sexual abuse - whether among polygamists or in the Catholic Church. I just don't believe it's necessary to defenestrate the Bill of Rights for everyone else in order to rein such folks in.


Anonymous said...

Word on the street is, even if the search warrants are tossed, Warren will not go free. Supposedly, recent FLDS leaders and women/girls who revolted against Warren will be willing to testify against him in any re-trial. That and the evidence found in the Escalade will be enough to re-convict.

Anonymous said...

Jessup is no different than the tyc employees who practice pedophilia. It’s a double standard that this guys is persecuted, perhaps illegally, for his “religious practice” while the state sponsored child abuse has gone to great extremes to be covered up with a name change by our governor and his cronies. This ruling party of wasp is very scary and pose a tremendous threat to democracy. Not saying Jessup should be let off just saying the chimps who call themselves running tyc should be persecuted as well.

ckikerintulia said...

As far as I'm concerned, if the search warrant is tossed I will not be glad because Jessups goes free--at least until there's a new trial--but because the fourth amendment is upheld. Jessups is a creep. But creepiness should not create an exception to the fourth amendment.

ckikerintulia said...

Mea culpa--I think I got the name wrong--Jeffs instead of Jessups.

Anonymous said...

To quote 'A Man For All Seasons':

William Roper: So, now you give the Devil the benefit of law!

Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?

William Roper: Yes, I'd cut down every law in England to do that!

Sir Thomas More: Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!

It was true in 1500 and it is still true today.

Anonymous said...

The bigger problem, and the main issue as I see it, is that the 16-year old girl who made the initial report (Sarah) was coerced to do so under threat of arrest and prosecution by the Texas Rangers in order for them to have probable cause for a warrant to enter inside the compound.

Many would argue that the ends justified the means, but breaking the law and undermining the Constitution doesn't stop with just one case though. No, this only emboldens law enforcement to continue their never-ending stomping of the protections against unlawful search and seizure.

As witnessed from several recent SCOTUS decisions that have eroded these protections, twenty-years from now they won't need a search warrant or probable cause to enter our homes and search until they find some inkling of wrongdoing.

Anonymous said...

Actually that 16 year old girl was a 33 year old African American woman who called in the report for motives unknown.

Anonymous said...

01:13:00 PM, that is correct, I had forgotten. Can someone explain the difference between being coerced to call in a fake complaint and a Texas Ranger himself calling in the complaint? No difference at all, is there? In other words, a law enforcement officer who wants to raid your home can just call his agency and say there is criminal activity, and then get a judge to sign a warrant. That's some real scary shit. Anonymous tips should never be allowed to be used as a criminal investigative tool, as all too often they aren't really "anonymous" at all..

Hook Em Horns said...

Anonymous said...
01:13:00 PM, that is correct, I had forgotten. Can someone explain the difference between being coerced to call in a fake complaint and a Texas Ranger himself calling in the complaint?
Yes, a Texas Ranger or anyone for that matter, can affirm that they have "evidence" of a criminal nature that leads to a search warrant. The issue, and likely the one that will decide the validity of these warrants is this.

When a search warrant is issued it is based on an affidavit whereby someone indicates they have knowledge that evidence exists. There must be probable cause which I believe, in this case, was the statement by the complainant that she had, in fact, been inside the compound and had seen evidence that indicated criminal activity.

It is not clear whether this individual was ever inside the compound and if this is in fact true, how would she have any knowledge of any evidence.

Anonymous said...

Rozita Swenson (the anonymous caller) is a sad tale in herself. Mentally ill. Viciously abused as a child. A history of making calls 'reporting' child abuse. But she had details, the name of a real man in FLDS (who turned out not to have ever been to Texas) that someone fed her. It made the calls more convincing.

My 4th Amd question is how far out can a bad warrant taint the evidence. Once they got on the ranch and saw the other pregnant girls, can other evidence they later confiscated be clean? I recall there was more than one search warrant. Could there be line that frees some of the other men, but keeps Jeffs in?

Hook Em Horns said...

Anonymous 11:53, this is the million dollar question. The 4th Amendment and Search Warrants are always being tweaked it seems mostly in favor of law enforcement and prosecutors.

There was a search warrant issued here in the Houston area to search private property because bodies were supposed to be buried there. The affidavit was based on a criminal complaint from a 'psychic' who had visions.

The courts, generally, weigh on the side of law enforcement when the intent seems to be genuinely above board. The problem many times in Texas is when judges act as an arm of the D.A. or law enforcement.

Anonymous said...

Law enforcement gets a tip that there is a girl inside the compound being abused. They get a search warrant to go in and look for her. Isn't that what they're taught to do? Once they go inside pursuant to the warrant, they see what appears to be many pregnant underage girls and evidence that the people inside been destroying documents. They leave. They get another search warrant, with probable cause being what they observed inside during the first warrant. It's then that they do the massive search of the entire property. Again, isn't that exactly what they're taught to do? Color me confused where the problem lies.

Gritsforbreakfast said...

2:26, start by reading Grits' coverage of the appellate arguments and if you're still confused, come back and let us know.

john said...

Who was that cult a couple years ago where CPS seized buckets of kids, and due to there operation outside law, they had to give 'em back and back off. Or is this the same one hanging on, or who?
Is it possible the main Mormons wanted to get rid of these bad apples?
Anyway, The Main Thing Here is those in power seek to build more case law by which they can go around the written law and better trample our Rights.
And no doubt they want to make some money. If they get away with it, it increases their clout, and who knows about fund-raising, subsidy-raising, etc.??

Gritsforbreakfast said...

John, these are the criminal cases stemming from the same incident you're describing. The kids were all sent back to their mothers some time ago now.

rodsmith said...

what i havent' forgotten is that after all those so-called children were taken and placed under the children's services supervison it took them almost TWO MONTHS to notice 1/2 WERE NOT EVEN CHILDREN!.

and this was the so-called experts!

as for the warrant it's a joke. what set of keystone cops don't have caller id! she called claiming she was at the ranch and being abused...she wasnt' even in the same state i dont' think!

Anonymous said...

I don;t think Jeffs will go free as Charles states. If I'm not mistaken, he was already in custody in Colorado for similar charges and found guilty there too wasn't he?

Anonymous said...

2:26 here. Grits, I did read your coverage, but then I also just read the opinion. Not confused anymore.

I don't see a creepiness exception in the opinion, just basic 4th Amendment law. Just like I was saying....

Gritsforbreakfast said...

If you see it so clearly, 10:57, then please explain it: How can they rely on the DFPS testimony when DFPS would not have been there sans the April 3 warrant? If that's clearly "basic Fourth Amendment law" to you and not fruit of the poisonous tree, please explain "why?" to the rest of us. The opinion sure doesn't say, except by fiat.